932 F.

2d 67

UNITED STATES of America, Appellant,

v.
Terry C. CARR and Mark Todd Carr, Defendants, Appellees.
No. 90-2137.

United States Court of Appeals,

First Circuit.
Heard March 7, 1991.
Decided May 6, 1991.

Cerise Lim-Epstein, Asst. U.S. Atty., with whom Wayne A. Budd, Boston,
Mass., U.S. Atty., was on brief, for the U.S.
Robert D. Richman, Boston, Mass., Federal Defender Office, for appellee
Terry C. Carr.
Margaret H. Carter, Salem, Mass., with whom James L. Sultan and
Rankin & Sultan, Boston, Mass., were on brief, for appellee Mark Todd
Carr.
Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and
CYR, Circuit Judge.
LEVIN H. CAMPBELL, Circuit Judge.

The United States appeals from the district court's judgment sentencing
defendants-appellees Terry C. Carr and her husband Mark Todd Carr. The
government argues that the district court's downward departure from the
Sentencing Guidelines' range was improper. The Carrs pled guilty to charges of
mail fraud, in violation of 18 U.S.C. Secs. 2 and 1341, for their alleged
participation in a scheme to defraud the Liberty Mutual Insurance Company by
submitting fraudulent claims. The government, pursuant to the plea agreement,
recommended the least restrictive sentence within the Guidelines for both
defendants. At sentencing on July 10, 1990, the probation officer found the
applicable Guidelines' range for Terry Carr to be 15-21 months and 12-18
months for Mark Carr. The probation officer recommended enhancement of

Terry Carr's sentence for being an "organizer, leader, manager or supervisor."

The district court agreed with the government that Terry Carr was not such a
leader, and thus concluded that the Guidelines' range for her should be 10-16
months. Defendants requested a downward departure based on their
responsibilities to their four-year-old son, Patrick. The district court departed
downward and sentenced Terry Carr to a community treatment facility for ten
months and Mark Carr to five months in prison and five months in a community
treatment facility.1 The district court also imposed on each defendant a twentyfour month period of supervised release and ordered payment of restitution not
to exceed $20,000 and special assessments of $500.
2

The government contends that the circumstances on which the district court
relied--the sentence's fairness in comparison with other sentences imposed by
the court and the defendants' family responsibilities to their four-year-old son-do not constitute legitimate grounds for a downward departure. See United
States v. Diaz-Villafane, 874 F.2d 43 (1st Cir.), cert. denied, --- U.S. ----, 110
S.Ct. 177, 107 L.Ed.2d 133 (1989). The defendants respond that this court does
not have jurisdiction to hear this appeal because the government did not file its
notice of appeal until September 21, 1990, forty-one days after August 10,
1990--the date the judgments including sentences were entered on the criminal
docket. Fed.R.App.P. 4(b) provides that the government's notice of appeal must
be filed "within 30 days after the entry of ... the judgment or order appealed
from...."2 To this jurisdictional challenge, the government replies that it filed a
"Motion for Reconsideration of Sentencing" on July 31, 1990,3 and that the
pendency of this motion rendered the docketed judgments including sentences
nonfinal, for purposes of commencing the thirty-day period for filing its appeal,
until the district court summarily denied the motion on August 27, 1990. See
United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 19, 50 L.Ed.2d 8 (1976) (per
curiam ) (involving appeal from order dismissing indictment). Under this
theory, the thirty-day period prescribed in Fed.R.App.P. 4(b) began running
only on August 27, 1990. The government's notice of appeal from both the
sentences and the denial of the motion for reconsideration was filed less than
thirty days later. Defendants counter that, under the recently amended
Fed.R.Crim.P. 35, and also under 18 U.S.C. Sec. 3582(c), the district court
lacked jurisdiction to entertain the government's motion for reconsideration
once judgment was entered. The fact that the motion remained unresolved on
August 10, 1990, therefore, did not render the judgments non-final when
docketed on that date.

I.
3

We turn first to the question of whether the government's appeal was timely.

We hold that it was.

4

Congress amended Fed.R.Crim.P. 35 as part of the Sentencing Reform Act of

1984, Pub.L. No. 98-473, Title II, Sec. 215(b), 98 Stat. 1837, 2015. Prior to the
Sentencing Reform Act, Rule 35(a) permitted the district court to correct an
illegal sentence at any time. The Sentencing Reform Act repealed this provision
and the current Rule 35(a) now expressly authorizes the court to correct a
sentence only on remand after the court of appeals determines that the sentence
was imposed in violation of law or as the result of an incorrect application of
the Sentencing Guidelines. The legislative history states that Rule 35 was
amended "in order to accord with the provision of proposed section 3742 of
title 18 concerning appellate review of sentence." S.Rep. No. 225, 98th Cong.,
2d Sess. 158, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3341.
Defendants argue that the change effectively withdrew from the district court
all power to reconsider and modify a sentence once imposed (i.e., from the time
docketed). See United States v. Cook, 890 F.2d 672, 674-75 (4th Cir.1989).
The sentencing statute, 18 U.S.C. Sec. 3582(c), lends some support to this
argument in respect to sentences to prison: "The court may not modify a term of
imprisonment once it has been imposed," except in limited circumstances not
relevant here.

Despite the above changes, the government contends that the district court
nevertheless retains some inherent power to correct sentences--and that we
should, therefore, continue to apply the well established rule that, where a
timely reconsideration motion was filed, the thirty-day appeal period did not
begin to run until the denial of the motion. United States v. Dieter, 429 U.S. at
8, 97 S.Ct. at 19. In Dieter, a pre-guideline case, the Supreme Court
unanimously reaffirmed its ruling in United States v. Healy, 376 U.S. 75, 84
S.Ct. 553, 11 L.Ed.2d 527 (1964), that the dispositive date for commencement
of the relevant appeal period was the date when a timely rehearing petition in
the district court was denied, rather than the date of the order itself. The Court
explained as follows:

6 Court of Appeals misconceived the basis of our decision in Healy. We noted

The
there that the consistent practice in civil and criminal cases alike has been to treat
timely petitions for rehearing as rendering the original judgment nonfinal for
purposes of appeal for as long as the petition is pending. 376 U.S., at 78-79 [84
S.Ct., at 555-556]. [footnote 3 in original: The Court of Appeals' concern with the
lack of a statute or rule expressly authorizing treatment of a post-dismissal motion as
suspending the limitation period ignores our having grounded our decision in Healy,
not on any express authorization (which was similarly lacking in Healy ), but rather
on "traditional and virtually unquestioned practice." 376 U.S., at 79, 84 S.Ct., at

556.] To have held otherwise might have prolonged litigation and unnecessarily
burdened this Court, since plenary consideration of an issue by an appellate court
ordinarily requires more time than is required for disposition by a trial court of a
petition for rehearing. Id., at 80 [84 S.Ct., at 556]. The fact that appeals are now
routed to the courts of appeals does not affect the wisdom of giving district courts
the opportunity promptly to correct their own alleged errors, and we must likewise
be wary of imposing added and unnecessary burdens on the courts of appeals. These
considerations fully apply whether the issue presented on appeal is termed one of
fact or of law, and the Court of Appeals' law/fact distinction--assuming such a
distinction can be clearly drawn for these purposes--finds no support in Healy. It is
true that the Government's postdismissal motion was not captioned a "petition for
rehearing," but there can be no doubt that in purpose and effect it was precisely that,
asking the District Court to "reconsider [a] question decided in the case" in order to
effect an "alteration of the rights adjudicated." Department of Banking v. Pink, 317
U.S. 264, 266 [63 S.Ct. 233, 234, 87 L.Ed. 254] (1942).
7

Dieter, 429 U.S. at 8-9, 97 S.Ct. at 19-20.

Notwithstanding enactment of the Sentencing Guidelines, including 18 U.S.C.

Sec. 3582(c), and notwithstanding the modification of Rule 35, two courts of
appeals have recently recognized an inherent power in the district court to
correct acknowledged errors in sentencing.4 In United States v. Rico, 902 F.2d
1065 (2d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 352, 112 L.Ed.2d 316
(1990), defendant and government reached a plea agreement which called for a
specific sentence, and the court, intending to abide by the agreement,
mistakenly imposed a less severe sentence. Three days later, the government
brought the mistake to the court's attention and requested a correction. While
emphasizing the narrowness of its decision, the Second Circuit held that the
district court had inherent power to correct the "inadvertent" error within the
time fixed for filing an appeal. Id. at 1068. Compare United States v. Uccio,
917 F.2d 80, 84 (2d Cir.1990).

In Cook, 890 F.2d 672, the district court had inadvertently omitted a term of
imprisonment from a sentence of supervised release and community
confinement under the Sentencing Guidelines, Sec. 5C2.1(c)(3). Recognizing
its error, the court sua sponte resentenced the defendant three weeks later in
accordance with the Guidelines. The Fourth Circuit, while stressing that its
holding was "a very narrow one," held that the district court had inherent power
to modify the sentence "to correct an acknowledged and obvious mistake"
during the thirty-day period in which an appeal could be filed. Id. at 675.5

10

Given the two above circuit rulings, and the Supreme Court's rationale in

Dieter, we reject defendants' argument that an undecided rehearing motion no

longer delays the running of the period for taking an appeal. To be sure, there
is some logic to the proposition that the statutory and rule changes following
adoption of the Guidelines have stripped the district court of power to correct
its sentence once a sentence has been formally imposed--ergo, a rehearing
motion is a futility and cannot suspend the running of the appeal period.
However, the Dieter Court relied upon what it called the "traditional and
virtually unquestioned practice" of treating rehearing petitions as suspending
the limitation period, refusing to consider the "lack of a statute or rule." Dieter,
429 U.S. at 8, note 3, 97 S.Ct. at 19, note 3. The Dieter Court also emphasized
the practical desirability of unburdening appellate courts by allowing the
district courts to correct their own alleged errors. Dieter, 429 U.S. at 8, 97 S.Ct.
at 19. If the Court is to be taken literally--and when all nine members of the
Supreme Court speak, we are certainly not disposed to do otherwise--we think
the traditional tolling rule must continue to be observed. This position is
strengthened by the fact that two of our sister circuits have found that the
district courts retain certain residual corrective powers notwithstanding the
recent changes made to Rule 35 and 18 U.S.C. Sec. 3582(c).
11

The precise question is not the extent of the district court's corrective powers
but simply whether the rule in Dieter was repealed sub silentio by the recent
changes in Rule 35 and the language of 18 U.S.C. Sec. 3582(c). That rule is
merely that a timely motion for reconsideration tolls the running of the appeal
period. Until the Supreme Court, Congress or the bodies collectively
responsible for adopting the Federal Criminal Rules send a clearer signal that
Dieter is not still the law, we believe it incumbent upon us to follow it.
Compare United States v. Lefler, 880 F.2d 233 (9th Cir.1989) (tolling of appeal
period unaffected even by court's conclusion that the district court lacked power
to grant the relief requested in the motion for reconsideration). At least, we will
follow the tolling rule in respect to motions for reconsideration while pending
within the time frame allowed for taking an appeal from the sentencing order.
In so doing, we need take no position on the extent of the district court's
retained corrective powers, if any. It is enough for present purposes that the
government's reconsideration motion cannot, under today's case law, be said to
have been unquestionably and blatantly outside the district court's jurisdiction
to resolve. We hold, therefore, that this appeal is timely, and move to the merits
of the appeal.

II.
12

The first step in reviewing a departure under the Guidelines is to determine

whether the circumstances upon which the district court relied provide

legitimate grounds justifying departure. Diaz-Villafane, 874 F.2d at 49. This

review is plenary. Id. We may resolve this case on this first step alone, as we
agree with the government that the circumstances relied upon in this case--the
defendants' family responsibilities to their four-year-old son and the sentence's
fairness in comparison with other sentences imposed by the court--do not
constitute legitimate grounds under the Guidelines for a downward departure.
13

The Sentencing Reform Act provides that a departure may be based upon "an
aggravating or mitigating circumstance of a kind, or to a degree, not adequately
taken into consideration by the Sentencing Commission in formulating the
Guidelines that should result in a sentence different from that described." 18
U.S.C. Sec. 3553(b). See also Manual, Sec. 1A4(b) at 1.6-1.7 (a court may
depart in an unusual case where conduct is outside the "heartland" of typical
cases). We have previously emphasized that adherence to the legislative will in
enacting sentencing reform with primary goals of honesty, proportionality and
uniformity demands judicial restraint, United States v. Williams, 891 F.2d 962,
963-64 (1st Cir.1989), and that departures should only be permitted where there
is something "special" about a given offender. United States v. Norflett, 922
F.2d 50, 54 (1st Cir.1990); United States v. Aguilar-Pena, 887 F.2d 347, 350
(1st Cir.1989).

14

We do not think that responsibilities to their four-year-old son place defendants

outside the "heartland" of typical cases. The Sentencing Commission has
stated: "Family ties and responsibilities and community ties are not ordinarily
relevant in determining whether a sentence should be outside the guidelines."
Guidelines, Sec. 5H1.6. In United States v. Pozzy, 902 F.2d 133, 139 (1st Cir.),
cert. denied, --- U.S. ----, 111 S.Ct. 353, 112 L.Ed.2d 316 (1990), we held that
the sentencing judge erred in departing downward on grounds of the
defendant's pregnancy. We stressed in Pozzy that: (1) "pregnancy of convicted
female felons is neither atypical nor unusual;" (2) that the sentencing judge
could have avoided the stigma to the child from being born in prison by
postponing commitment until after the child was born; and (3) that "defendant's
sister, the mother of two children, had volunteered to look after the child until
defendant had completed her prison term." Id. at 138-39.

15

Likewise in this case, a convicted felon's responsibilities to a young child are

neither atypical nor unusual. As the Sentencing Commission surely considered,
innumerable defendants could establish that their prison sentences would
interfere with parental responsibilities. See United States v. Daly, 883 F.2d 313,
319 (4th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2622, 110 L.Ed.2d 643
(1990). Moreover, as the government suggests, the district court could have
limited the impact on defendants' son within the Guidelines' regimen by staying

the execution of sentence of one parent until the other's sentence had been
served. Finally, as in Pozzy, the child would not be left unsupported, as
defendants both indicated that Terry Carr's mother would care for the child
while his parents were imprisoned. We do not go so far as to hold that parental
responsibilities under extraordinary circumstances could never be a factor to be
considered in departing downward from the Guidelines. See Guidelines, Sec.
5H1.6, supra. But we find that no such extraordinary circumstances that would
justify a departure have been demonstrated in this case.
16

The district court also stated, in announcing the downward departures, that "it's
fair compared to what I have done with other people." Defendants suggest that
the court may have meant to compare the Carrs' sentences with those of their
codefendants in this case, who received lesser sentences. The district court's
individual beliefs as to proportionality and uniformity based on sentencing in
other cases cannot alone constitute aggravating or mitigating circumstances not
adequately taken into consideration by the Sentencing Commission. The
Sentencing Commission had to have considered that the "heartland" sentencing
range for codefendants might differ, based on a variety of factors. The district
court's effort to reconcile sentences notwithstanding the Guidelines'
requirements "indicates dissatisfaction with the guidelines rather than a
reasoned judgment that particular characteristics of the offense ... have not been
accounted for." Aguilar-Pena, 887 F.2d at 353 (quoting United States v. NunoPara, 877 F.2d 1409, 1414 (9th Cir.1989)). Where the Guidelines have taken
matters into account in the case of each individual defendant, judicial
dissatisfaction with the comparative outcome cannot justify a departure. We
agree with the Second Circuit's statement in United States v. Joyner, 924 F.2d
454, 460-61 (2d Cir.1990):

17 think the entire structure of the sentencing guideline system indicates that the
We
Commission fully considered the resulting disparities that would result among codefendants and was satisfied that the different ranges it prescribed for differences in
offense conduct and prior record would produce differences in punishments that the
Commission believed were appropriate, rather than the "unwarranted" disparities
that Congress sought to eliminate.
18

The departure authority permits a sentencing judge to recognize that some

factor concerning an individual defendant is of a kind or is present to a degree
not adequately considered by the Commission. But neither Congress nor the
Commission could have expected that the mere fact of a difference between the
applicable guideline range for a defendant and that of his co-defendant would
permit a departure, either because the difference was too large or too small....
To reduce the sentence by a departure because the judge believes that the

applicable range punishes the defendant too severely compared to a codefendant creates a new and entirely unwarranted disparity between the
defendant's sentence and that of all similarly situated defendants throughout the
country.
19

Vacated and remanded for further proceedings consistent with this opinion.

The district court stated as its reasons:

I am going to go along with suggestions that have been made by defense
counsel, because I think that they are called for in this case. So I'm going to
have a downward departure as suggested by Mr. Richman and as suggested by
Mr. Sultan, because I still think it's fair compared to what I have done with
other people.
In a nutshell, here is what I think we ought to do. I think we ought to require
Mrs. Carr to spend the entire ten months in a treatment center, preferably one
that is in the southeastern United States so that she may be near the child. And
as a reason for the downward departure, obviously I'm using that which was
suggested by Mr. Richman, that is the family responsibility for the child.
With respect to Mr. Carr, also, I would like to keep the family together, so that
I'm going to go along with the suggestion of Mr. Sultan. I don't think it's
something that was thoroughly considered by the sentencing commission.... I'm
not imposing any fine in these cases. And I think that since the probation
officer will be overseeing the ability of people to pay that restitution that this is
a fair outcome when I compare it to sentences that I've given in other cases.

Fed.R.App.P. 4(b) provides that a judgment or order is entered within the

Rule's meaning when entered in the criminal docket

The government's Motion for Reconsideration was filed in the interim between
the district court's pronouncement of sentence on July 10, 1990 and the entry of
the court's judgments and sentencing orders on the docket a month later

Fed.R.Crim.P. 36 grants the district court express authority at any time to

correct clerical mistakes in judgments and orders. The mentioned cases
involved something more than clerical errors, however, making it necessary to
look beyond Rule 36. United States v. Cook, 890 F.2d at 674-75

Expressly to deal with problems of the sort raised in Cook and Rico, the
Committee on Rules of Practice and Procedure of the Judicial Conference has

proposed an amendment to Rule 35 that would allow the district court, "acting
within 7 days after the imposition of sentence, [to] correct a sentence that was
imposed as a result of arithmetical, technical, or other clear error."
Fed.R.Crim.P. 35(c) (proposed, July, 1990). The Committee note explains that
the amendment would codify the Cook and Rico result, but would impose "a
more stringent time requirement ... to reduce the likelihood of jurisdictional
questions in the event of an appeal and to provide the parties with an
opportunity to address the court's correction of the sentence, or lack thereof, in
any appeal of the sentence." The Committee went on to emphasize that the
proposal should not be interpreted to accord the district court anything but the
narrowest authority to correct sentences:
The authority to correct a sentence under this subdivision is intended to be very
narrow and to extend only to those cases in which an obvious error or mistake
has occurred in the sentence, that is, errors which would almost certainly result
in a remand of the case to the trial court for further action under Rule 35(a).
The subdivision is not intended to afford the court the opportunity to reconsider
the application or interpretation of the sentencing guidelines or for the court
simply to change its mind about the appropriateness of the sentence. Nor
should it be used to reopen issues previously resolved at the sentencing hearing
through the exercise of the court's discretion with regard to the application of
the sentencing guidelines.